Ohio University’s red-light status is well-earned. I was shocked enough by it that I mentioned part of OU’s code in my 2003 Senate testimony, using it as an example of policies that

[d]angerously trivialize society’s most serious crimes in an effort to get at “offensive speech.” Ohio University’s “Statement on Sexual Assault,” for example, declares that “Sexual assault occurs along a continuum of intrusion and violation ranging from unwanted sexual comments to forced sexual intercourse.” One should be very concerned about any university that cannot make a principled distinction between loutish comments and rape.

Those of you who are interested in how FIRE decides that some schools are “red light” and others are “yellow” or “green light” schools should read Sam’s thorough response below. Let’s hope the student, now armed with this knowledge, will ask the OU administration how it stands by such a code.

Thank you for your inquiry regarding Ohio University’s “red light” status on www.speechcodes.org. This email will provide you with information on what constitutes a “red light” policy and on Ohio University’s policies in particular. Should you have any additional questions, please do not hesitate to contact me.

Red Light Universities

A "red light" university has at least one policy that—in FIRE’s opinion—both clearly and substantially restricts freedom of speech. A "clear" restriction is one that unambiguously infringes on what is or should be protected expression. In other words, the threat to free speech at a red light institution is obvious and does not depend on how the policy is applied. A "substantial" restriction on free speech is one that is broadly applicable to important categories of campus expression. For example, a ban on "offensive speech" would be a clear violation (in that it is unambiguous) as well as a substantial violation (in that it covers a great deal of what would be protected expression in the larger society). Such a policy would earn a university a red light.

Ohio University’s Sexual Harassment and Sexual Assault Policies

Ohio University’s sexual harassment policy merits a “red light” because it clearly and substantially restricts students’ freedom of expression. Ohio University’s policy includes the following statement:

Policy and Procedure – 03.004: Harassment

Nonsexual verbal or physical conduct that denigrates or shows hostility toward another because of the person’s gender can be the basis for a hostile, offensive, or intimidating environment claim. Gender based conduct can take the form of abusive written or graphic material; epithets; sexist slurs; negative stereotyping; jokes; or threatening, intimidating, or hostile acts.

This policy prohibits a great deal of constitutionally protected speech. Under this policy, students could be disciplined for comments made during a legitimate classroom discussion. For example, if a student stated his opinion—in the context of a classroom discussion about military operations in Iraq– that women should not be in combat because they aren’t as physically strong as men, this student might be punished for “negative stereotyping” of women. In reality, and according to the federal government, harassment is something much more serious than speech that merely “denigrates” or “shows hostility” to someone. In July 2003, the U.S. Department of Education’s Office of Civil Rights (OCR) issued a clarification letter regarding harassment and the First Amendment. The letter made clear that harassment “must include something beyond the mere expression of views, words, symbols, or thoughts that some person finds offensive.” You can read the full text of OCR’s letter at www.thefire.org/index.php/article/4905.html.

Ohio University’s Sexual Assault policy should be particularly frightening to students, as it fails to draw any meaningful distinction between cat calls and forcible rape. The University’s “Statement on Sexual Assault” provides that “[s]exual assault is defined as any attempted or actual unwanted sexual behavior. Sexual assault occurs along a continuum of intrusion and violation ranging from unwanted sexual comments to forced sexual intercourse. Sexual intrusions and violations of any degree are serious offenses and compromise the integrity of the university community. All forms of sexual assault are violations of the A-4 (Mental or Bodily Harm to Others) provision of the Ohio University Student Code of Conduct.” [Emphasis added]

Ohio University is a public university, an agent of the state of Ohio. As such, Ohio University is legally bound by the U.S. Constitution and cannot violate its students’ First Amendment rights, as this policy clearly does.